Democracy for America

franzwohlgemuth

(65 posts) Thu Dec 24, 2020, 03:14 PM Dec 2020

A case to be made... (LONG post...)

An oath of office is an oath or affirmation a person takes before assuming the duties of an office, usually a position in government or within a religious body, although such oaths are sometimes required of officers of other organizations. Such oaths are often required by the laws of the state, religious body, or other organization before the person may actually exercise the powers of the office or organization. It may be administered at an inauguration, coronation, enthronement, or other ceremony connected with the taking up of office itself, or it may be administered privately. In some cases it may be administered privately and then repeated during a public ceremony.

Some oaths of office are statements of allegiance and loyalty to a constitution or other legal text (e.g., an oath to support the constitution of the state, or of the federal). Under the laws of a state/nation, it may be considered treason or a high crime to betray a sworn oath of office.

In the United States, the oath-taking dates back to the First Congress in 1789, the current oath is a product of the 1860s, drafted by Civil War–era members of Congress intent on ensnaring traitors.

Or the President is specified in the Constitution (Article II, Section 1):
I, (name), do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.
The oath may be sworn or affirmed (in which case it is called an affirmation instead of oath). Although not present in the text of the Constitution, it is customary for modern presidents to say "So help me God" after the end of the oath. For officers other than the President, the expression "So help me God" is explicitly prescribed, but the Judiciary Act of 1789 also explains when it can be omitted (specifically for oaths taken by court clerks): "Which words, so help me God, shall be omitted in all cases where an affirmation is admitted instead of an oath.”

The Constitution (Article VI, clause 3) also specifies:
The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.

At the start of each new U.S. Congress, in January of every odd-numbered year, newly elected or re-elected Members of Congress – the entire House of Representatives and one-third of the Senate – must recite an oath:
I, (name), do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. [So help me God.]

The original 1787 text of the Constitution of the United States makes three references to an "oath or affirmation": In Article I, Senators must take a special oath or affirmation for the purpose of sitting as the tribunal for impeachment; in Article II, the president is required to take a specified oath or affirmation before entering office (see oath of office); and in Article VI, all state and federal officials must take an oath or affirmation to support the US Constitution. A fourth appears in Amendment IV, all warrants must be supported by evidence given under oath or affirmation.
On Friday, March 4, 1853, Franklin Pierce became the 14th President of the United States and has been the only president to date who affirmed rather than swore to the office.

This oath is also taken by the Vice President, members of the Cabinet, federal judges and all other civil and military officers and federal employees other than the President.

So what does taking an oath mean? Why even do it? The reason is simple – public servants are just that – servants of the people.
The Oaths are relatively straightforward, but what do they mean? The oath has 3 important aspects. First, they swear to support and defend the Constitution against enemies. Second, they swear allegiance to the Constitution. Finally, the employee promises to do their job well.

One thing that federal workers often hear is a career supervisor or political appointee talking about loyalty to the agency or the boss. One purpose of the Oath of Office is to remind them that they do not swear allegiance to a supervisor, an agency, a political appointee, or even to the President. Other laws have been enacted that support that view. For example, in 1939, Congress passed and President Franklin D. Roosevelt signed the Hatch Act (which no one in the federal government has the spine to enforce). We call it that today, but the actual name of the law is “An Act to Prevent Pernicious Political Activities.”

The Oath does not remove ambiguity and it is not always easy for an employee to know what to do. Here are a few examples:
• Lawful orders. Let’s say someone in authority gives a federal worker a lawful order that s/he does not agree with. That disagreement might be for ethical reasons, differences in policy direction, or other reasons. Federal employees are required to follow lawful orders, even if they disagree with them.

• Unlawful orders. 5 USC 2302(b) (9)(D) gives employees the right to refuse with respect to unlawful orders. Refusing an unlawful order is not easy. The employee may face significant pressure to carry out an order that s/he knows is unlawful. Most employees never have the experience of being given an unlawful order. In the few cases it has happened to me, an explanation to my boss that what I was asked to do was illegal was sufficient and the matter was dropped. If it had not been enough, my only acceptable course would be to refuse to carry out the order. Doing something illegal because you are “just following orders” is not a viable defense.

• Regulatory violations. What happens when an order violates a regulation or rule, but is not technically illegal? A 2015 Merit Systems Protection Board decision directly answered that question. MSPB outlined the issues in the case, writing “Specifically, the appellant asserted that the agency violated 5 U.S.C. § 2302(b) (9)(D), which protects employees from retaliation “for refusing to obey an order that would require the individual to violate a law.” 5 U.S.C. § 2302(b) (9)(D). He alleged that the agency improperly stripped him of particular job duties and gave him a subpar performance rating for disobeying an order that would have required that he violate (1) a Federal Acquisition Regulation that limits the authority of a contracting officer’s representative (COR), and (2) “PA296: How to be a COR,” the agency’s training course for COR certification, which further clarifies the limitations to this authority.” MSPB’s final decision said “…we hold that the right-to-disobey provision at section 2302(b) (9)(D) extends only to orders that would require the individual to take an action barred by statute. Because the appellant in this case contends that he disobeyed an order that would have required him to violate an agency rule or regulation, his claim falls outside of the scope of section 2302(b) (9)(D).” That means a manager could discipline or even remove an employee for failing to carry out an order that violates a regulation but not a law.

• Other situations. The oath of office and most case law do not grant any protection for deciding that an order is a bad idea, bad policy, or morally wrong. In fact, the oath does not grant any protection from anything. It is an oath of allegiance and a promise to do good work. Employees who believe they are being ordered to act in a manner inconsistent with their oath of office may pursue other options, such as whistleblower complaints, contacting their Senators or Representatives or their organization’s Inspector General, or any other avenue provided by law or regulation. Disobeying direct orders is generally not one of the available options. That means an employee who wants to argue that s/he is adhering to the oath of office by disobeying orders has a very tough hill to climb. There is also the option of going to the press, but that can bring its own set of risks. It is up to individual employees to decide how much risk they are willing to assume.

Federal workers are accountable to the people, not to politicians. Whether an employee was a Trump supporter or Clinton supporter, a supporter of another candidate, or someone who chooses not to vote at all is not relevant to the oath of allegiance to the Constitution.
At the first session of Congress after every general election of Representatives, the oath of office shall be administered by any Member of the House of Representatives to the Speaker; and by the Speaker to all the Members and Delegates present, and to the Clerk, previous to entering on any other business; and to the Members and Delegates who afterward appear, previous to their taking their seats.

The Clerk of the House of Representatives of the Eightieth and each succeeding Congress shall cause the oath of office to be printed, furnishing two copies to each Member and Delegate who has taken the oath of office in accordance with law, which shall be subscribed in person by the Member or Delegate, who shall thereupon deliver them to the Clerk, one to be filed in the records of the House of Representatives, and the other to be recorded in the Journal of the House and in the Congressional Record; and such signed copies, or certified copies thereof, or of either of such records thereof, shall be admissible in evidence in any court of the United States, and shall be held conclusive proof of the fact that the signer duly took the oath of office in accordance with law.
(R.S. § 30; Feb. 18, 1948, ch. 53, 62 Stat. 20.)

Notice how it says “records thereof, shall be admissible in evidence in any court of the United States, and shall be held conclusive proof of the fact that the signer duly took the oath of office in accordance with law.”
There is a reason for that. Said oaths are legally binding. So, if they are legally binding, that means there is a punishment for violating them… Let’s take a look.

The Constitution requires that all members of Congress must take an oath of office to support the Constitution before assuming office. In order to comply with the Constitution, Congress has enacted federal laws to execute and enforce this constitutional requirement.
Federal law regulating oath of office by government officials is divided into four parts along with an executive order which further defines the law for purposes of enforcement. 5 U.S.C. 3331, provides the text of the actual oath of office members of Congress are required to take before assuming office. 5 U.S.C. 3333 requires members of Congress sign an affidavit that they have taken the oath of office required by 5 U.S.C. 3331 and have not or will not violate that oath of office during their tenure of office as defined by the third part of the law, 5 U.S.C. 7311 which explicitly makes it a federal criminal offense (and a violation of oath of office) for anyone employed in the United States Government (including members of Congress) to “advocate the overthrow of our constitutional form of government”. The fourth federal law, 18 U.S.C. 1918 provides penalties for violation of oath office described in 5 U.S.C. 7311 which include: (1) removal from office and; (2) confinement or a fine.

The definition of “advocate” is further specified in Executive Order 10450 which for the purposes of enforcement supplements 5 U.S.C. 7311. One provision of Executive Order 10450 specifies it is a violation of 5 U.S.C. 7311 for any person taking the oath of office to advocate “the alteration ... of the form of the government of the United States by unconstitutional means.” Our form of government is defined by the Constitution of the United States. It can only be “altered” by constitutional amendment. Thus, according to Executive Order 10450 (and therefore 5 U.S. 7311) any act taken by government officials who have taken the oath of office prescribed by 5 U.S.C. 3331which alters the form of government other by amendment, is a criminal violation of the 5 U.S.C. 7311.
Members of Congress, for example, promise this: I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.

The president has a similar oath.

Is there a high-profile politician whom you would swear has never violated that oath, never failed to defend the Constitution or evade his or her responsibilities in order to serve party over country?

For more than 200 years, Congress operated largely as the country’s founders envisioned — forging compromises on the biggest issues of the day while asserting its authority to declare war, spend taxpayer money and keep the presidency in check.
It has been replaced by a weakened legislative branch in which debate is strictly curtailed, party leaders dictate the agenda, most elected representatives rarely get a say and government shutdowns are a regular threat due to chronic failures to agree on budgets, being more concerned with party agenda over the people’s agenda.

The political center has largely evaporated, party leaders have adhered to the demands of their bases, while rules and traditions that long encouraged deliberative deal making have given way to partisan gridlock.

More and more legislative authority is delegated to the executive branch every year. Both parties do it. The legislature is impotent. The legislature is weak. The more it happens, the less oversight there is. Executive branch agencies now make law, not Congress.
The result is a Congress that is primarily just there to confirm the president’s selections and personnel business. Which violates the enumerated powers in the constitution that they swore to uphold and defend.

The initial culprit is well-known: political polarization in a (purposefully) divided nation. Each side, seeing the chance of claiming the majority in the next election, focuses first on trying for the political wins by driving up turnout from their most loyal partisans. Not what’s actually best for the nation, they want power, and to keep it.

Now remember, 5 U.S.C. 7311 which explicitly makes it a federal criminal offense (and a violation of oath of office) for anyone employed in the United States Government (including members of Congress) to “advocate the overthrow of our constitutional form of government”.

If the role of the House of Representatives is to do the will of the people, pursuant to the constitution and their oath, doing the bidding of a Political Party, Lobbyist, or even the Executive branch, is an attempt to overthrow our constitutional form of government by subverting their constitutionally prescribed roll in favor of answering to someone else. Our constitution requires the House (and the senate, given the 17th amendment) do the bidding of the people. Only the people.

The infamous “Trump Tax Cut’ was not popular with the majority of the U.S. populace. The GOP held House and Senate passed it anyway, defying the will of the people, but bowing to Party and President. “Trumpcare” was despised by everyone, the GOP house passed it anyway, defying the will of the people. Mitch McConnell admitted publicly that over 400 bills passed by the house (many of them bi-partisan) were dead in the water because they came from the Democrats. Impeding the normal flow and function of congress, and the will of the people. During the Pandemic, the people crying out for help and aid, and the Senate GOP were more concerned about passing judges for Trump (most of them unfit for the bench), instead of actually functioning as the constitution prescribes, and ignoring bi partisan bills passed by the House on aid for the American people.

During Trump’s impeachment for willfully violating federal law, House GOP cared more about political grandstanding than actually enforcing the law. The Senate GOP were worse. Not allowing evidence, allowing the President to willfully ignore/defy congressional oversight… Even to the point of admitting that Trump did violate the law and violated his oath, but said he should still be in office (knowing he has and would further violate the law and constitution they swore to uphold).

Their allowance, and in some cases encouragement, of constitutional violations alone are a violation of their oath. Their incessant capitulation to the Executive branch, party, lobbyists, and refusal to perform their constitutionally prescribed rolls all prove their violations of oath.

Now with every facet of law (SCOTUS (twice), all 50 states, DHS, Cyber Security, AG William Barr (another guilty of violating their oath), the Electoral College…) has all shown that the election was legally binding and that Biden is going to be the next President. GOP from both House and Senate are going to defy law and the will of the people. Not because there is actual cause. But because they don’t like Biden, and are capitulating to party and personality. At this point, without a valid reason to overturn the Biden presidency (aka: overthrow), the house and Senate GOP along with Trump himself are attempting Sedition and Treason. Both are definitely violations of their oaths.

Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.
(June 25, 1948, ch. 645, 62 Stat. 807; Pub. L. 103–322, title XXXIII, § 330016(2)(J), Sept. 13, 1994, 108 Stat. 2148.)

If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.
(June 25, 1948, ch. 645, 62 Stat. 808; July 24, 1956, ch. 678, § 1, 70 Stat. 623; Pub. L. 103–322, title XXXIII, § 330016(1)(N), Sept. 13, 1994, 108 Stat. 2148.)

Whoever knowingly or willfully advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States or the government of any State, Territory, District or Possession thereof, or the government of any political subdivision therein, by force or violence, or by the assassination of any officer of any such government; or
Whoever, with intent to cause the overthrow or destruction of any such government, prints, publishes, edits, issues, circulates, sells, distributes, or publicly displays any written or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence, or attempts to do so; or
Whoever organizes or helps or attempts to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any such government by force or violence; or becomes or is a member of, or affiliates with, any such society, group, or assembly of persons, knowing the purposes thereof—
Shall be fined under this title or imprisoned not more than twenty years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction.
If two or more persons conspire to commit any offense named in this section, each shall be fined under this title or imprisoned not more than twenty years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction.
As used in this section, the terms “organizes” and “organize”, with respect to any society, group, or assembly of persons, include the recruiting of new members, the forming of new units, and the regrouping or expansion of existing clubs, classes, and other units of such society, group, or assembly of persons.
(June 25, 1948, ch. 645, 62 Stat. 808; July 24, 1956, ch. 678, § 2, 70 Stat. 623; Pub. L. 87–486, June 19, 1962, 76 Stat. 103; Pub. L. 103–322, title XXXIII, § 330016(1)(N), Sept. 13, 1994, 108 Stat. 2148.)

Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.
(June 25, 1948, ch. 645, 62 Stat. 808; Pub. L. 103–322, title XXXIII, § 330016(1)(L), Sept. 13, 1994, 108 Stat. 2147.)
Whoever, owing allegiance to the United States and having knowledge of the commission of any treason against them, conceals and does not, as soon as may be, disclose and make known the same to the President or to some judge of the United States, or to the governor or to some judge or justice of a particular State, is guilty of misprision of treason and shall be fined under this title or imprisoned not more than seven years, or both.
(June 25, 1948, ch. 645, 62 Stat. 807; Pub. L. 103–322, title XXXIII, § 330016(1)(H), Sept. 13, 1994, 108 Stat. 2147.)

In short, conditions in this country have not been this bad since 1932 at least, and the political situation has not been this bad since 1860. The logical endgame of the rapidly-accelerating Republican attempt to destroy democracy while the country burns would be civil war.

All members of Congress swear an oath to protect and defend the Constitution, which establishes a republican form of government. The whole point of a republic is that contests for power are conducted through a framework of rules and democratic elections, where all parties agree to respect the result whether they lose or win.

The Constitution stipulates that insurrectionists who violate their oath are not allowed to serve in Congress. Section 3 of the Fourteenth Amendment, written to exclude Confederate Civil War traitors, says that "No person shall be a Senator or Representative in Congress … who … having previously taken an oath, as a member of Congress … to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same[.]"It's insurrection plain and simple.

But it's not hard to see where the current conservative trajectory is headed. While Republicans have tried to overturn the election using increasingly blatant lies and subversive methods of intimidation/threats/violence, top conservative pundits are mulling the idea of secession, all with Trump egging and encouraging it (also violating his oath, yet again, by inciting sedition and treason). The lie that Biden stole the election is now official GOP dogma. We also have the Republican Party ignoring the deadly pandemic (if not actively spreading the virus as was revealed with their intent on herd immunity) while they try to overturn the Constitution. They feel they can safely ignore the welfare of the American people, because they are not accountable to them. All proving the legal necessity for their immediate removal from office.

It is time our government works FOR the people. Not the party. Not a lobbyist. Not for the favor of someone from another branch of government. It’s time our government follows the law and constitution they swore to uphold and defend. It’s time people are held accountable for undermining our government, nation, law, and the people.

https://theweek.com/articles/954673/constitution-answer-seditious-members-congress
https://www.law.cornell.edu/uscode/text/18/part-I/chapter-115
https://law.justia.com/constitution/us/
https://www.propublica.org/article/how-congress-stopped-working
https://www.inaugural.senate.gov/vice-presidents-swearing-in-ceremony/#:~:text=I%20do%20solemnly%20swear%20(or,that%20I%20will%20well%20and
https://bensguide.gpo.gov/j-oath-office?highlight=WyJjb25zdGl0dXRpb24iLCJjb25zdGl0dXRpb24ncyJd#:~:text=The%20official%20reciting%20the%20oath,Affirmation%20to%20support%20this%20constitution.%22
https://www.opm.gov/blogs/Director/oath-of-office/
https://www.azcentral.com/story/opinion/op-ed/ej-montini/2019/05/18/oath-office-congress-lie/3709831002/
https://www.law.cornell.edu/uscode/text/5/3331
http://foavc.org/01page/Articles/Violation%20of%20Oath%20of%20Office%20and%20Walker%20v%20Members%20of%20Congress.htm
https://history.house.gov/Institution/Origins-Development/Oath-of-Office/
https://www.senate.gov/artandhistory/history/common/briefing/Oath_Office.htm#:~:text=I%20do%20solemnly%20swear%20(or,that%20I%20will%20well%20and
https://federalnewsnetwork.com/commentary/2019/10/the-oath-of-office-and-what-it-means/
https://fas.org/sgp/crs/misc/RL30725.pdf
https://www.law.cornell.edu/uscode/text/2/25